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Exhibit 10.17
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into on March 1, 2000 (the "Effective Time"), by
and between Xxxxx X. Xxxxxx, an individual resident of the State of Iowa
("Executive"), and Stockpoint, Inc., a Delaware corporation ("Company").
WHEREAS, Executive has heretofore been employed as the Chief Financial
Officer of the Company; and
WHEREAS, the Company desires to continue to have the benefit of the
Executive's services as a corporate officer of the Company;
NOW, THEREFORE, in consideration of the premises, the respective
undertakings of the Company and Executive set forth below, the Company and
Executive agree as follows:
1. Employment. The Company hereby agrees to employ Executive, and Executive
accepts such employment and agrees to perform services for the Company, upon the
other terms and conditions set forth in this Agreement.
2. Term. The term of this agreement is one year and renews annually, unless
either party provides written notification 90 days prior to the renewal. See
section 8 below for Termination definitions and remedies.
3. Positions, Duties and Reporting.
3.01 Service with Company. During the term of this Agreement, Executive
agrees to perform such reasonable employment duties consistent with the role of
Chief Financial Officer as the Company shall assign to him/her from time to
time.
3.02 Performance of Duties. Executive agrees to serve the Company
faithfully and to the best of his/her ability and to devote his/her full time,
attention, and efforts to the business and affairs of the Company during the
term of this Agreement. Executive represents to the Company that he/she is under
no contractual commitments inconsistent with his/her obligations set forth in
this Agreement, and that during the term of this Agreement, he/she will not
render or perform services for any other corporation, firm, entity or person
which are inconsistent with the provisions of this Agreement.
3.03 Reporting. This position will report to the President or Chief
Executive Officer of the Company.
4. Compensation.
4.01 Base Salary. As base compensation for all services to be rendered by
Executive under this Agreement during the first year of the term of this
Agreement, the Company shall pay to Executive a base salary at a rate of
$105,000 per year, which salary shall be paid on a twice-monthly basis in
accordance with the Company's normal payroll procedures and policies. The salary
payable to Executive during each subsequent year during the term of this
Agreement shall be established by the Company and Executive, but in no event
shall the salary for any subsequent year be less than the base salary in effect
for the prior year. Upon the completion of an initial public offering of the
Company's common stock or another strategic transaction that satisfies the
Company's present obligations to the Northern Trust Company in full, the base
salary payable to the Executive will be increased to $122,500 per year.
4.02 Participation in Benefit Plans. During the term of this Agreement,
Executive shall be entitled to receive such medical and hospitalization
insurance and other fringe benefits as are being provided to the Company's other
executive level employees from time to time to the extent that Executive's age,
position or other factors qualify him/her for such fringe benefits.
4.03 Expenses. The Company will pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by him/her in the
performance of his/her duties under this
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Agreement, subject to the presentment of appropriate vouchers in accordance with
the Company's normal policies for expense verification.
4.04 Incentive for completion of an initial public offering. Upon the
completion of an initial public offering of the Company's common stock, the
Company will also pay Executive an IPO cash bonus of $35,000, which is due and
payable, immediately upon the close.
4.05 Annual Incentive Compensation. The Company shall formulate and deliver
to Executive by March 31, 2000 with respect to the remainder of fiscal 2000, and
by January 1 with respect to each succeeding fiscal year during the term of this
Agreement, and the Company and Executive shall use their best efforts to
negotiate and agree to, an annual incentive compensation plan for Executive.
5. Confidential Information. Except as permitted or directed by the
Company's Board of Directors, during the term of this Agreement or at any time
thereafter, Executive shall not divulge, furnish or make accessible to anyone or
use in any way (other than in the ordinary course of the business of the
Company) any confidential or secret knowledge or information of the Company
which Executive has acquired or become acquainted with or will acquire or become
acquainted with during the period of his/her employment by the Company, whether
developed by himself/herself or by others, concerning any trade secrets,
confidential or secret designs, processes, formulae, plans, devices or material
(whether or not patented or patentable) directly or indirectly useful in any
aspect of the business of the Company, any confidential or secret development or
research work of the Company, or any other confidential information or secret
aspects of the business of the Company. Executive expressly acknowledges that,
in addition to the Company's proprietary software and technical know-how, the
Company's customer lists and the form (including, without limitation, payment
terms) of the Company's relationships with its customers is not publicly known
and that the disclosure or use of such information for any purpose other than
for the benefit of the Company could cause substantial damage the Company and
would place the Company at a competitive disadvantage. Executive acknowledges
that the above-described knowledge or information constitutes a unique and
valuable asset of the Company and that any disclosure or other use of such
knowledge or information other than the sole benefit of the Company would be
wrongful and would cause irreparable harm to the Company. The foregoing
obligations of confidentiality shall not apply to any knowledge or information
which is now published, which subsequently becomes generally publicly known,
other than as a direct or indirect result of the breach of this Agreement by
Executive, or which was known to the Executive prior to the term of his/her
employment with the Company. Executive agrees to notify any person or entity
with which Executive is employed or for which Executive provides services of the
requirements of this Section 5 and to notify the Company of the identity of any
such person or entity with which Executive is employed during the One year after
termination of this Agreement.
6. Employee Solicitation. During employment, and for a period of nine
months thereafter, Executive shall not (i) directly or indirectly solicit any
employee of the Company or any of Company's affiliates to leave the employ of
any such entity or in any way interfere adversely with the relationship between
any such employee and any such entity, (ii) directly or indirectly solicit any
employee of the Company or any affiliates to work for, render services or
provide advice to or supply confidential business information or trade secrets
of any such entity to any third person, firm or corporation, or (iii) directly
or indirectly solicit any existing customers and potential customers that have
an unexpired written proposals under consideration. For purposes of the
foregoing, solicitation shall not include solicitation of employees, vendors or
customers (i) who first solicit employment or a relationship from Executive, or
(ii) who are solicited (A) by advertising in periodicals of general circulation
or by general circulation Internet advertising, or (B) by a search or consulting
firm on behalf of Executive or Executive's affiliates, so long as Executive or
such affiliates did not direct or encourage such firm to solicit such employee,
vendor or customer of the Company. If any restriction set forth in this
paragraph is held to be unreasonable, then Executive and the Company agree, and
hereby submit, to the reduction and limitation of such prohibition to such area
or period as shall be deemed reasonable.
7. Patent and Related Matter.
7.01 Disclosure and Assignment. Executive will promptly disclose in
writing to the Company complete information concerning each and every
invention, discovery, improvement, work of authorship, device, design,
apparatus, practice, process, method or product whether patentable or not,
made, developed, authored, perfected, devised, conceived or first reduced
to practice by Executive, either solely or in collaboration with others,
during the term of this Agreement, whether or not during regular working
hours,
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relating to the Business of the Company (hereinafter referred to as
"Developments"). Executive, to the extent that he/she has the legal right
to do so, hereby acknowledges that any and all of said Developments are the
property of the Company and hereby assigns and agrees to assign to the
Company any and all of Executive's right, title and interest in and to any
and all of such Developments.
7.02 Limitation on Section 7.01. The provisions of section 7.01 shall
not apply to any Development meeting the following conditions:
(a) such Development was developed entirely on Executive's own
time; and
(b) such Development was made without the use of any Company
equipment, supplies, facility or trade secret information, excluding
Executives laptop; and
(c) such Development does not relate (I) directly to the Business
of the Company, or (ii) to the Company's actual or demonstrably
anticipated research or development; and
(d) such Development does not result from any work performed by
Executive for the Company.
7.03 Assistance of Executive. Upon request and without further
compensation therefor, but at no expense to Executive, and whether during
the term of this Agreement or thereafter, Executive will do all lawful
acts, including, but not limited to, the execution of papers and lawful
oaths and the giving of testimony, that in the opinion of the Company, its
successors and assigns, may be necessary or desirable in obtaining,
sustaining, reissuing, extending and enforcing United States and foreign
patents and/or registrations including, but not limited to, design patents,
on any and all of such Developments (other than those described in 7.02),
and for perfecting affirming and recording the Company's complete ownership
and title thereto, and to cooperate otherwise in all proceedings and
matters relating thereto.
7.04 Obligations, Restrictions and Limitations. Executive understands
that the Company may enter into agreements or arrangements with agencies of
the United States Government, and that the Company may be subject to laws
and regulations which impose obligations, restrictions and limitations on
it with respect to inventions and patents which may be acquired by it or
which may be conceived, authored or developed by employees, consultants or
other agents rendering services to it. Executive agrees that he/she shall
be bound by all such obligations, restrictions and limitations applicable
to any such invention or work of authorship conceived, authored or
developed by him/her during the term of this Agreement and shall take any
and all further action which may be required to discharge such obligations
and to comply with such obligations and to comply with such restrictions
and limitations.
8. Termination
8.01 Grounds for Termination. This Agreement may be terminated:
(a) by the Company, if Executive dies, or
(b) by the Executive, if Executive becomes disabled (as defined
below), or
(c) by the Company, if the Executive has engaged in conduct
constituting cause for his/her termination and the Company notifies
Executive in writing of such election, or
(d) by the Company without cause upon notice to the Executive in
writing of such election, provided that such termination may only
occur by unanimous decision of the Board of Directors if there are
then three or fewer Directors or by a majority decision of the Board
of Directors if there are then four or more Directors.
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(e) by the Executive, if the Executive is constructively
terminated, as defined in paragraph 8.01(2) herein and the Executive
has notified the Company of his/her election to terminate for
Constructive Termination, or
(f) by the Executive upon notice to the Company in writing of
such election.
If this Agreement is terminated pursuant to subsection (a), (b), (c),
(e) or (f) of this section 8.01, such termination shall be effective
immediately. If this Agreement is terminated pursuant to subsection (d) of
this section 8.01, such termination shall be effective thirty (30) days
after delivery of the notice of termination.
(1) "Cause" Defined. "Cause" means:
(a) The Employee has breached the provisions of Section 5, 6 or 7
of this Agreement in any material respect,
(b) The Executive has engaged in willful and material misconduct,
including willful and material failure to perform the Employee's
duties as an officer or employee of the Company and has failed to cure
such default within 30 days after receipt of written notice of default
from the Company,
(c) The Executive has committed fraud, misappropriation or
embezzlement in connection with the Company's business, or
(d) Executive has been convicted or has pleaded nolo contendere
to criminal misconduct that is detrimental to the Company's reputation
or that calls into question, in the judgement of the Board,
Executive's integrity in fulfilling his/her duties under this
Agreement.
In the event the Company terminates Executive's employment for "cause"
pursuant to subsection 8.01 and Executive objects in writing to the Board's
determination that there was proper "cause" for such termination within
(30) days after Executive is notified of such termination, the matter shall
be resolved by arbitration in accordance with the provisions of section
10.01. If Executive fails to object to any such determination of "cause" in
writing within such thirty (30) day period, he/she shall be deemed to have
waived his/her right to object to that determination. If such arbitration
determines that there was not proper "cause" for termination, such
termination shall be deemed to be a termination pursuant to subsection
8.01(d).
(2) "Constructive Termination" defined. Constructive Termination means
termination by Executive after written notice to the Company that Executive
deems such termination by Executive as a result of Constructive
Termination, and only after:
(a) A material breach by the Company of a material obligation of
the Company under this Agreement after the Executive has
given the Company written notice of the breach and the
Company has not remedied the breach within 30 days;
(b) A failure of the Company to pay when due to the Executive
any annual base salary, annual bonus or other earned bonus
or awards referred to in this Agreement;
(c) The relocation of the Executive's principal place of
employment to a location not within a 30 mile radius of such
place of employment on the Effective Date;
(d) A material reduction by the Company of the Executive's
duties or responsibilities;
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(e) The failure of the Company to obtain an agreement reasonably
satisfactory to the Executive from any successor to assume
and agree to perform this Agreement , or, if the business
for which the Executive's services are principally performed
is sold or transferred, the failure of the Company to obtain
such an agreement from the purchaser or transferee of such
business; or
(f) The Company becomes insolvent or bankrupt where executive
can no longer perform his/her duties as outlined above.
In the event the Executive terminates Executive's employment for
"Constructive Termination" pursuant to subsection 8.01 and the Company
objects in writing to the Executive's determination that there was
Constructive Termination within (30) days after Executive has notified the
Company of the same, the matter shall be resolved by arbitration in
accordance with the provisions of section 10.01. If the Company fails to
object to any such determination of "Constructive Termination" in writing
within such thirty (30) day period, it shall be deemed to have waived its
right to object to that determination. If such arbitration determines that
there was not proper "Constructive Termination", such termination shall be
deemed to be a termination pursuant to subsection 8.01(c).
8.02 "Disability" Defined. For purposes of this Agreement, the term
"disabled" means any mental or physical condition which renders Executive unable
to perform the essential functions of his/her positions, with or without
reasonable accommodation, for a period of more than ninety (90) days during any
consecutive one hundred twenty (120) day period.
8.03 Surrender of Records and Property. Upon termination of his/her
employment with the Company, Executive shall deliver promptly to the Company all
records, manual, book, blank forms, document, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof, which are the
property of the Company or which relate in any way to the business, products,
practices or techniques of the Company, and all other property, trade secrets
and confidential information of the Company, including, but not limited to, all
documents which in whole or case are in his/her possession or under his/her
control.
8.04 Wage and Benefit Continuation. If Executive's employment by the
Company is terminated pursuant to subsection 8.01 (d) or 8.01(e), the Company
shall continue to pay to Executive his/her base salary and shall continue to
provide health insurance benefits for Executive for a period 9 months after
termination. Notwithstanding anything else in this Section 8.04, Executive shall
not be entitled under this Section 8.04 or any other provision of this Agreement
to receive any cash compensation pursuant to this Agreement which constitutes an
"excess parachute payment" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended, or any successor provision or regulations
promulgated.
If this Agreement is terminated pursuant to subsection 8.01 (a), 8.01 (c), or
8.01 (f), Executive's right to base salary and benefits shall immediately
terminate except as may otherwise be required by applicable law.
If Executive's employment is terminated by the Company pursuant to
subsection 8.01(a), 8.01(b), 8.01(d) or 8.01(e), Executive shall also be
entitled to receive any bonus payment that as of the time of termination
would have been payable to him/her pursuant to any incentive plan then in
effect.
9. Indemnification and Directors & Officers Insurance
9.01 Indemnification. The Company will provide Executive indemnification,
exculpation and expense advancement, to the fullest extent of the law,
including, without limitation, entering into an indemnification agreement with
Executive in at least as beneficial a form to Executive as the Company has
entered into with any other officer or director of the Company.
9.02 Directors and Officers Insurance. The Company will provide, at its
expense, Directors and Officers (D&O) insurance in an amount deemed appropriate
by its Board of Directors and Officers. If the Company shall show any employee
as a named insured under such policy, the Executive shall be a named insured
under such policy.
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10. Settlement of Disputes.
10.01 Arbitration. Except as provided in section 10.02 any claims or
disputes of any nature between the Company and Executive arising from or
related to the performance, breach, termination, expiration, application,
or meaning of this Agreement or any related matter relating to Executive's
employment and the termination of that employment by the Company shall be
resolved exclusively by arbitration in Minneapolis, MN, in accordance with
the then applicable rules of the American Arbitration Association. Any such
arbitration shall be conducted by an arbitrator with said Rules, who has at
least ten (10) years experience as an attorney in executive compensation
and employment law. The fees of the arbitrator (s) and other cost,
including attorney fees, incurred by Executive and the Company in
connection with such arbitration shall be paid by the party who is
unsuccessful in such arbitration, as determined by the arbitrator. The
decision if the arbitrator(s) shall be final and binding upon both parties.
Judgement of the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. In the event of submission of any
dispute to arbitration, each party shall, not later than thirty (30) days
prior to the date set forth hearing, provide to the other party and to the
arbitrator(s) a copy of all exhibits upon which the party intends to rely
at the hearing and a list of all persons each party intends to call at the
hearing.
10.02 Resolution of Certain Claims- Injunctive Relief. Section 10.01
shall have no application to claims by the Company asserting a violation of
section 5, 6, 7 or 8.03 or seeking to enforce, by injunction or otherwise,
the terms of section 5, 6, 7 or 8.03. Such claims may be maintained by the
Company in a lawsuit subject to the terms of section 10.03. Executive
agrees that, in addition to, but not to the exclusion of any other
available remedy, the Company shall have the right to enforce the
provisions of sections 5, 6, 7 and 8.03 by applying for and obtaining
temporary and permanent restraining orders injunctions from a court of
competent jurisdiction without the necessity of filing a bond therefor and
without the necessity of proving actual damages, and the Company shall be
entitled to recover from the Employee its reasonable attorneys' fees and
costs in enforcing the provisions of Sections 5, 6, 7 and 8.03.
10.03 Venue. Any action at law, suit in equity, or judicial proceeding
arising directly or indirectly, or otherwise in connection with, out of,
related to or from this Agreement or any provisions hereof shall be
litigated only in the courts of the State of Iowa. Executive waives any
right the Executive may have to transfer or change the venue of any
litigation brought against Executive by the Company.
10.04 Severability. To the extent any provisions of this Agreement
shall be invalid or unenforceable, it shall be considered deleted herefrom
and the remainder of such provisions and if this Agreement shall be
unaffected and shall continue in full force and effect. In furtherance and
not in limitation of the foregoing, should the duration or geographical
extent of, or business activities covered by, any provisions of this
Agreement be in excess of that which is valid and enforceable under
applicable law, then such provisions shall be construed to cover only that
duration, extent or activities which may validly and enforceably be
covered. Executive acknowledges the uncertainty of the law in respect and
expressly stipulates that this Agreement be given the construction which
renders its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law.
11 Miscellaneous.
11.01 Governing Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of Iowa.
11.02 Prior Agreements. Except as set forth in Section 1, this
Agreement contains the entire agreement of the parties relating to the
employment of Executive by the Company and the ancillary matters discussed
herein and supersedes all prior agreements and undertakings with respect to
such matters, and the parties hereto made no arrangements, representations
or warranties relating to such employment or ancillary matters which are
not set forth herein.
11.03 Withholding Taxes. The Company may withhold from any benefits
payable under this Agreement all federal, state, city or other taxes shall
be required pursuant to any law governmental regulation, or ruling or any
other amount owed to the Company.
11.04 Amendments. No amendment or modification of this Agreement shall
be deemed effective unless made in writing and signed by the both Executive
and Company.
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11.05 No Waiver. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by
the party against whom enforcement of the waiver or estoppel is sought. Any
written waiver shall not be deemed a continuing waiver unless specifically
stated, shall operate only as to specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
11.06 Assignment. This Agreement shall not be assignable, in whole or
in part, by either party without the written consent of the other party,
except that the Company may, without the consent of the Executive, assign
its rights and obligations under this Agreement to any corporation, firm or
other business entity with or into which the Company may merge or
consolidate, or to which the Company may sell or transfer all or
substantially all of its assets, or of which 50% or more of the equity
investment and of the voting control is owned, directly or indirectly, by,
or is under common ownership with, the Company; provided, however, that no
such assignment will relieve Company of any of its obligations hereunder.
After any such assignee shall thereafter be deemed to be the Company for
the purposes of all provisions of this Agreement including section 9. .
11.07 Counterparts. This Agreement may be simultaneously executed in
any number of counterparts, and such counterparts executed and delivered,
each as an original, shall constitute but the same instrument.
11.08 Notices. All notices, demands and other communications to be
given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have given when personally
delivered or three days after being mailed, if mailed, by first class mail,
return receipt requested, or when receipt is acknowledged, if sent by
facsimile, telecopy or other electronic transmission device. Notices,
demands and communications to Company and the Executive will, unless
another address is specified in writing, be sent to the address indicated
below:
Notices to Company: Notice to Executive:
------------------- --------------------
Stockpoint, Inc. ________________
0000 Xxxxxxxxx Xxxx ________________
Xxxxxxxxxx, Xxxx 00000 ________________
Attn: President
11.09 Captions and Headings. The captions and paragraph headings used
in this Agreement are for convenience of reference only, and shall not
affect the construction or interpretation of this Agreement or any of the
provisions hereof.
11.10 Effect of Termination. It is expressly understood that neither
the Company nor the Executive shall have any continuing obligation under
this agreement upon termination hereof, except in respect of the matters
referenced in Sections 5, 6, 7 and 8.03.
IN WITNESS WHEREOF, Executive and the Company have executed this Agreement
as of date set forth herein.
Stockpoint, Inc.
By:___________________
Its___________________
EXECUTIVE
______________________
Xxxxx X. Xxxxxx
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